Mueller v. Bohannon

• Decision Date: 26 February 1999
• Docket Number: No. S-97-1067,S-97-1067
• Citation: 589 N.W.2d 852,256 Neb. 286
• Parties: John M. MUELLER and Janet Rae Mueller, husband and wife, appellants, and Cedar Valley Partnership, a Nebraska partnership, appellee, v. Howard J. BOHANNON and Grace Bohannon, husband and wife, and Harold B. McGowan and Shirley M. McGowan, husband and wife, appellees.
• Court: Nebraska Supreme Court

Page 852

589 N.W.2d 852

256 Neb. 286

John M. MUELLER and Janet Rae Mueller, husband and wife, appellants and Cedar Valley Partnership, a Nebraska partnership, appellee, v. Howard J. BOHANNON and Grace Bohannon, husband and wife, and Harold B. McGowan and Shirley M. McGowan, husband and wife, appellees.

No. S-97-1067.

Supreme Court of Nebraska.

Feb. 26, 1999.

Syllabus by the Court

1. Equity: Quiet Title. A quiet title action sounds in equity.

2. Equity: Appeal and Error. On appeal from an equity action, the appellate court tries factual questions de novo on the record and, as to questions of both fact and law, reaches a conclusion independent of the findings of the trial court, subject to the rule that where credible evidence is in conflict on material issues of fact, the reviewing court may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.

3. Abandonment: Words and Phrases. Abandonment is the voluntary and intentional relinquishment of a right to property.

4. Easements: Abandonment: Intent. An easement may be abandoned by unequivocal acts showing a clear intention to abandon and terminate the right, or it may be done by acts in pais without deed or other writing.

5. Easements: Abandonment: Intent: Time: Proof. In proving intention to abandon an easement, time is not a necessary element; it is not the duration of the nonuser, but the nature of the acts done by the dominant owner, or of the adverse acts acquiesced in by him or her, and the intention which the one or the other indicates, that are important.

6. Easements: Abandonment: Pleadings: Proof. Abandonment of an easement must be pled and proved, the burden of proof being on the party alleging it.

7. Easements: Abandonment: Intent: Proof. As to easements created by express grant or deed, evidence of nonuse cannot by itself prove abandonment, no matter how long the nonuse. Nonuser is relevant evidence of abandonment, but must be combined with other facts which indicate an intent of the easement holder to abandon its use.

8. Abandonment: Proof. The evidence proving abandonment must be clear and convincing.

9. Easements: Abandonment: Intent: Proof. The fact that an easement holder finds a more convenient alternative route instead of using the easement does not deprive the easement holder of the easement that remains for the holder's use and enjoyment whenever the holder has occasion to use the right.

10. Easements: Abandonment. If an owner of an easement, by his own act, renders the use of the easement impossible, or himself obstructs it in a manner inconsistent with its further enjoyment, the easement will be considered as abandoned by him.

11. Equity. Equity aids the diligent and not the negligent.

David E. Pavel, Omaha, for appellants.

Nile K. Johnson, Blair, and Charles A. Nye, Omaha, for appellees the Bohannons and the McGowans.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

Appellees Howard J. Bohannon (Bohannon) and Grace Bohannon claim an easement across property owned by appellants John H. Mueller (Mueller) and Janet Rae Mueller. The easement was created by deed in the Bohannons' chain of title. The Muellers filed this quiet title and declaratory judgment action asking the district court to declare (1) that the claimed easement was not sufficiently described, (2) that it was not properly recorded, or (3) that the Bohannons and their predecessors in title abandoned the easement. The district court granted the Muellers summary judgment. On appeal, the Nebraska Court of Appeals reversed, and remanded the cause on the abandonment issue. On remand, the district court ruled that the easement had not been abandoned. The Muellers appeal.

This appeal presents the question, Where an easement is created by express grant or deed, does evidence that the easement holder and/or its predecessors did not use the easement for more than the prescriptive 10-year period raise a presumption of abandonment and shift the burden of proof to the easement holder? We conclude that an easement created by deed does not raise a presumption of abandonment and that the burden did not shift to the Bohannons. However, we determine that the Muellers have proved by clear and convincing evidence that the Bohannons have abandoned the easement. Accordingly, we reverse.

BACKGROUND

The property in question encompasses tax lots in the south half of the northeast quarter of Section 28, Township 17 North, Range 12 East of the 6th P.M., in Washington County, Nebraska. The following is a sketch depicting the road and easement and other features relevant to this appeal. The sketch is for illustrative purposes only and does not purport to be drawn to scale.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In a warranty deed dated December 22, 1976, appellees Harold B. McGowan (McGowan) and Shirley M. McGowan sold Tax Lots 20 and 21 to James Culver and Nola Culver (Culver). Prior to selling the lots, McGowan constructed a road that began on its east end at a county road and ran westerly through what is now Tax Lot 28, then turned southwest and ran through what is now Tax Lot 29 and then between Tax Lots 20 and 21. The illustration above represents the road by solid lines. The deed to the Culvers granted "a permanent easement for ingress and egress to the premises...." The illustration above represents the actual easement by dotted lines. McGowan stated that his intent was that the easement that the deed described represent the road he constructed.

In June 1982, the Culvers sold the Bohannons Tax Lots 12, 13, 20, and 21 by warranty deed. The permanent easement in the previous deed to the Culvers was also contained in the deed to the Bohannons. The Bohannons reside east of Tax Lots 12 and 13 and have direct access to a county road from their residence. After the 1982 land purchase, the In September 1984, the McGowans sold Tax Lots 28 and 29 to Cedar Valley Partnership by warranty deed, and Cedar Valley in turn sold the lots to the Muellers by a land contract dated October 5, 1987. Prior to purchasing the property, Mueller noticed the approximately 25-foot-wide sliver of property separating Tax Lots 20 and 21 and testified that he approached Bohannon with an offer to exchange portions of land to make Tax Lot 29 more usable. Mueller testified that Bohannon declined and made no mention that Bohannon claimed an easement on the property between Tax Lots 20 and 21.

Bohannons owned a continuous strip of property from their residence to Tax Lots 20 and 21. However, a vehicle like a tractor or four-wheel-drive vehicle would be necessary to reach Tax Lots 20 and 21 through their property, because of the lay of the land.

In the spring of 1989, a dispute arose concerning the validity of the easement. Bohannon testified that he first informed Mueller of the claimed easement that spring, telling Mueller that he had the right to use the road as owner of an easement. Mueller objected, telling Bohannon that there was no easement on the property and that Bohannon had no business on his property. A couple days later, Bohannon presented Mueller with documentation of the easement.

The record, however, reflects that the easement is not actually located on the road that the Bohannons utilized. Rather, a 1996 survey shows that the easement that the Bohannons' and the Culvers' deeds describe is a 20-foot strip of land beginning within Tax Lot 21, running northeasterly through Tax Lot 21's northern boundary into Tax Lots 28 and 29 and then running easterly through Tax Lot 28 to a county road, as outlined by dotted lines on the illustration above. Mature trees stand upon much of the actual easement. However, the record reveals that McGowan planted those trees prior to the sale to the Culvers.

The Muellers and Cedar Valley filed this quiet title and declaratory judgment action in November 1993 against the Bohannons and the McGowans. The district court granted the Muellers summary judgment. The Court of Appeals reversed on appeal, finding that (1) the McGowan-to-Culver deed described the easement with sufficient detail to convey title and (2) the Muellers had constructive notice that the easement burdened their property. Mueller v. Bohannon, 96 NCA No. 26, case No. A-95-237, 1996 WL 345550 (not designated for permanent publication). However, the Court of Appeals determined that a fact question existed as to whether the Bohannons abandoned the easement and remanded the cause for trial on the issue of abandonment.

In a separate action, the Bohannons filed suit against the Muellers, asking the district court to declare that the Bohannons obtained an easement by prescription over the road that they actually used. The Bohannons' petition included a survey map indicating that, as shown by the above illustration, the easement they were granted does not follow the existing roadway. The Muellers answered in part that the Bohannons could not have obtained an easement by prescription because the Bohannons' use of the roadway was done with the permission of the Muellers and their predecessors in title. The Bohannons' lawsuit was joined for trial with the Muellers' quiet title and declaratory judgment action.

At trial, Bohannon admitted that he never used the actual easement described in his deed. He said the Bohannons did not use it because they did not know that the actual easement was something other than the existing roadway. He said that McGowan had told them that the existing roadway was the easement. Culver testified that to access Tax Lots 20 and 21 the Culvers used, exclusively, the existing roadway. Culver stated that they never had a surveyor confirm where the easement was located, but, rather, assumed that stakes outlining the east side of Tax Lot 21 and the west side of Tax Lot 20 indicated where the easement was.

Bohannon testified that he...